News - Renewable Energy

Urgent clarity needed following Judicial Review

05 October 2016

Jenny Bell looks at the potential implications for the offshore wind industry of the recent judicial review of four previously consented offshore wind farms off the coast of Scotland, successfully secured by the RSPB.

By now, those of us with an interest in the offshore wind industry will be aware of the recent judgement in favour of RSPB for a judicial review of four previously consented offshore wind farms in the outer Firths of the Forth and Tay. Judge Lord Stewart concluded that these consents were flawed on a number of grounds. One of the key areas of contention was a failure to consult properly on certain aspects of the original planning application.

In particular, the Court found that, by relying on an ‘Appropriate Assessment’, consent for the projects in question was being granted on the basis of information which was not subject to public consultation. An ‘Appropriate Assessment’ is a process to be undertaken in relation to a Special Protection Area (SPA) as defined under EU legislation to determine whether or not a proposed development will affect that SPA.

In normal circumstances, undertaking the Appropriate Assessment is the responsibility of the competent authority (in this case, Marine Scotland, rather than the applicant) and is usually carried out following submission of an Environmental Statement (ES) by the applicant. Whereas the ES is subject to public consultation, the Appropriate Assessment normally isn’t. However because the Appropriate Assessment was relied upon in determining the planning application, Judge Lord Steward found it also should have been consulted on.

The implication of the ruling is that, in future, there may be a requirement to undergo a further round of public consultation in relation to a draft Appropriate Assessment which would take place following (and in addition to) the public consultation previously undertaken at the Environmental Statement stage.

The issue of demonstrating adverse impact on an SPA ‘beyond reasonable scientific doubt’ also comes to the fore as part of this ruling. In this case, Scottish Natural Heritage and the Joint Nature Conservation Committee, as the statutory advisors, advised Marine Scotland that the proposed developments would have an adverse impact on the SPAs in question. Marine Scotland subsequently undertook its own analysis to conclude that there would be no adverse impact on the SPA. Based on this additional analysis, it over-ruled the advice from SNH and the JNCC and granted consent.

A further conclusion of the ruling was that Marine Scotland needed to do more to justify its decision to override such advice and to explain why that advice was incorrect. The practical implication of the ruling here is that it will be much more difficult for SNH advice to be over-ruled by the competent authority in such a way in future.

The judge also found that Ministers had gone beyond their powers in failing to take account of the draft Special Protection Area for the Forth and Tay estuaries when granting consent. Whereas a network of SPAs on land in Scotland is already well established, work is currently on-going to complete a similar network of marine SPAs at sea. As part of this process, certain marine areas have been designated as draft Special Protection Areas.

But the critical consideration here is that the reason behind that particular aspect of the ruling was that areas meeting the criteria of an SPA, even if not currently designated, should be considered as an SPA. The implication is that there may be opportunities for those objecting to proposed development to argue that areas outside the existing SPA network should be treated as SPAs for the purposes of planning if there is evidence of significant populations of species which would meet the criteria set out in EU legislation. This could make it much more difficult in future to achieve consent for development in such areas. In some ways, this was the most startling aspect of the judgement, with potential to greatly alter our understanding of what constitutes an SPA.

In summary, it seems likely that this ruling will lead to reinforced expectations around public consultation for developments of this type. Ministers will find it harder to go against the recommendations of SNH and the JNCC. The scope to object to development in areas outside designated SPA’s on grounds that those areas meet some or all of the criteria of an SPA is also enhanced by this ruling.

For an offshore wind industry still in the early stages of large scale commercialisation but with the potential to deliver major benefits in terms of green energy and security of supply, there is no doubt that this ruling is potentially a major setback.

This is unfortunate given that, in the right locations and with the right plans in place, offshore wind farms have the potential to enhance biodiversity through proactive habitat management and to bring about real and positive impacts on marine wildlife.

Overall, applications for development such as the ones affected by this ruling, made under Section 36 of the Electricity Act and involving a Special Area of Conservation or a Special Protection Area will need to be treated even more carefully in future. For the offshore wind sector, this case raises difficult questions about how developers can demonstrate no adverse impacts when there is no or insufficient information available to draw a clear conclusion. From an industry perspective, supplementary guidance and clarification on these points are needed as a matter of urgency.

Parties involved in the case have also indicated their intent to appeal the ruling and so it may also be that some or all of these findings are over-turned. However, to manage risk to projects, in the short to medium term, developers would be wise to take into account the implications of the rulings when considering sites in proximity to SPAs.